England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CENTRAL LONDON COUNTY COURT
(HER HONOUR JUDGE BAUCHER)

		Royal Courts of Justice Strand London, WC2A 2LL
		1 December 2016

LORD JUSTICE DAVIS:

Introduction

1. This appeal involves consideration of the validity of the seizure by the police of a motorcar under, or purportedly under, the provisions of section 165A of the Road Traffic Act 1988 as amended ("the 1988 Act"). This was on the basis that no valid certificate of motor insurance was, as it is said, produced by the driver at the time of seizure. The appeal involves in particular consideration of the application of the provisions of section 165 and section 165A of the 1988 Act as applied to the particular facts of this case.
2. The deputy district judge, after a trial following allocation of the case to the small claims track, found in a fully reasoned judgment delivered on 3 March 2014 that the seizure was valid. She accordingly dismissed the appellant's claim for damages for alleged wrongful and unlawful seizure. An appeal was dismissed by Judge Baucher sitting in the Central London County Court on 9 October 2014. Permission to appeal to this court was refused by Christopher Clarke LJ on the papers on 14 May 2015 but was granted after an oral hearing by Arden LJ on 19 November 2015, albeit limited to the one ground I identify below.
3. The appellant has appeared before us in person, as he had done below. I would like to say that he has argued his case both eloquently and courteously. The respondent Commissioner of Police of the Metropolis was represented by Mr Robert Cohen of counsel, who also appeared below.

Background facts

4. The background facts (which to a considerable extent were in any event not really in dispute) as found by the deputy district judge are these.
5. As long ago as 11 June 2011 the appellant was driving a Lotus Elise car, registration number R633 VLN when he was stopped by the police in Grosvenor Crescent in central London. One of the police officers, uniformed, was Police Constable Harris. Police Constable Harris asked Mr Gray if he had insurance for the car. Mr Gray was to say to him that he had insurance for another car, registration number S111 VAG, which covered him, he said, to drive any other vehicle. It was accepted by Mr Gray that he was the registered keeper of the Lotus Elise (ie R633 VLN), albeit he was to say that the actual owner was in fact his "brother" who had been owner for a few months, albeit the actual registration was in Mr Gray's own name and had not yet been changed with the DVLA.
6. It was found on the facts that Mr Gray had been asked by Police Constable Harris about his insurance. Mr Gray did not have with him, perhaps unsurprisingly, a hard copy of any insurance certificate. Nor did Mr Gray produce by electronic means an electronic copy of his insurance certificate. It was further found that Police Constable Harris and his colleague then (ie whilst at the scene) checked the Lotus Elise R633 VLN via the Police National Computer and National Insurance Database. The vehicle showed up by such means as uninsured. Police Constable Harris also phoned the Motor Insurance Bureau. He was told that their checks indicated that no car insurance for the Lotus Elise was shown on their systems either.
7. In addition, however, Police Constable Harris also asked the MIB over the phone about the insurance for vehicle registration number S111 VAG, being the other vehicle which Mr Gray had identified to him. The MIB, as was found, told Police Constable Harris over the phone that that vehicle did exist and was insured but the insurance did not cover Mr Gray to drive an otherwise uninsured vehicle which he owned. Further, those investigations so made by Police Constable Harris also indicated that Mr Gray was indeed the registered keeper of the Lotus Elise and had been since 1998.
8. It should be emphasised that there was no evidence and no finding that the enquiries of PC Harris gave him access to a copy of the actual insurance certificate of S111 VAG.
9. The deputy district judge overall found that Police Constable Harris was a very reliable witness. Although, as I have said, the evidence was not much in dispute, where it conflicted she preferred the evidence of Police Constable Harris to that of Mr Gray. The deputy district judge found that Police Constable Harris had reasonable grounds for believing that the Lotus Elise car was at that time being driven without valid insurance. Overall the deputy district judge found that all the conditions for valid seizure of the car were satisfied.
10. Amongst other things, the deputy district judge said this during the course of her review and findings on the evidence:

"I find PC Harris did require Mr Gray to produce the certificate of insurance... Did Mr Gray fail to produce such evidence? On Mr Gray's own evidence he did not have a hard copy of his certificate of insurance and although he says he could have obtained one he did not obtain an electronic copy, for example, by his smartphone which he could then show to the police officer."

11. A little later, having referred to the case of Pryor (to which I will come) the deputy district judge then said this:

"But in this case no certificate of insurance was produced either in hard copy or in electronic form which means that the condition in section 165A(3)(b) is satisfied..."

12. The position as found thus was that at the time of seizure of the car Police Constable Harris had been presented with information to the effect that there was a motor insurance policy in place for vehicle S111 VAG which not only covered that vehicle but also prospectively covered Mr Gray to drive with the owner's consent any other vehicle of which Mr Gray was not himself the owner. But the information provided to Police Constable Harris showed that Mr Gray was the registered keeper of the Lotus Elise; and although Mr Gray had asserted that his "brother" was in fact the owner of the Lotus Elise there was no independent evidence to verify that particular assertion at that time. The deputy district judge accordingly had found as a fact that it was reasonable in the circumstances for Police Constable Harris to proceed on the footing that Mr Gray was the owner of the Lotus Elise and in consequence that he had no valid insurance covering him to drive that car. Indeed, in due course a prosecution against Mr Gray for driving without insurance was thereafter instituted.
13. However, subsequently adduced evidence was to show, as was ultimately accepted, that Mr Gray had indeed transferred ownership of the Lotus Elise to a very old friend called Mr Landau, a man whom Mr Gray was to describe in evidence as someone he regarded as a "brother". It thus was ultimately accepted that on the basis that Mr Gray was not the owner of the Lotus Elise, even though he had remained the registered keeper because he and Mr Landau had not at that time got around to changing the details at the DVLA, he had indeed been insured under the policy relating to vehicle S111 VAG to drive the Lotus Elise. I should perhaps add that in some contexts being the registered keeper is in effect equated with ownership; but it was accepted before us and it was accepted below that that is not the case here and I will therefore proceed on that basis.
14. In the circumstances, Mr Gray was and is very aggrieved at the outcome. The Lotus Elise had been seized and impounded on the basis that he was not insured to drive it when in fact he was. He says that he has suffered loss and inconvenience. He had set out for a social weekend or something like that which had been severely disrupted. He then had to incur taxi fares, hire a replacement car and incur fees for obtaining release of the Lotus Elise from the pound. Moreover, for good measure it appears that the car had suffered an amount of rain damage (for which at least I gather Mr Gray or Mr Landau received some compensation). At all events, he issued a claim form in the County Court claiming damages on 19 June 2013.

Legal context

15. The legal context is this. By section 143(1) of the 1988 Act it is provided as follows:

"(1) Subject to the provisions of this Part of this Act—

(a) a person must not use a motor vehicle on a road or other public place unless there is in force in relation to the use of the vehicle by that person such a policy of insurance or such a security in respect of third party risks as complies with the requirements of this Part of this Act, and

(b) a person must not cause or permit any other person to use a motor vehicle on a road or other public place unless there is in force in relation to the use of the vehicle by that other person such a policy of insurance or such a security in respect of third party risks as complies with the requirements of this Part of this Act."

16. Section 147 of the 1988 Act, as amended, was, amongst other things, designed to make provision for a certificate of insurance to be transmitted electronically by the insurer to the insured, as is nowadays common practice.
17. Section 165 of the 1988 Act (as amended) provides in the relevant respects as follows:

"(1) Any of the following persons—

(a) a person driving a motor vehicle (other than an invalid carriage) on a road, or

(b) a person whom a constable or vehicle examiner has reasonable cause to believe to have been the driver of a motor vehicle (other than an invalid carriage) at a time when an accident occurred owing to its presence on a road or other public place, or

(c) a person whom a constable or vehicle examiner has reasonable cause to believe to have committed an offence in relation to the use on a road of a motor vehicle (other than an invalid carriage)

must, on being so required by a constable or vehicle examiner, give his name and address and the name and address of the owner of the vehicle and produce the following documents for examination.

(2) Those documents are—

(a) the relevant certificate of insurance or certificate of security (within the meaning of Part VI of this Act), or such other evidence that the vehicle is not or was not being driven in contravention of section 143 of this Act as may be prescribed by regulations made by the Secretary of State.

...

(2A) Subsections (2B) and (2C) below apply where a certificate of insurance is treated as having been delivered to a person under section 147(1) of this Act by virtue of section 147(1A) of this Act.

(2B) In the case of a certificate transmitted to a person as described in section 147(1A)(a) of this Act, the person is to be treated for the purposes of this section as producing the relevant certificate of insurance if—

(a) using electronic equipment provided by him or made available to him by the constable or examiner, he provides the constable or examiner with electronic access to a copy of the certificate, or

(b) he produces a legible printed copy of the certificate.

...

(2D) Nothing in subsection (2B) or (2C) above requires a constable or examiner to provide a person with electronic equipment for the purpose of compliance with a requirement imposed on the person by this section.

(3) Subject to subsection (4) below, a person who fails to comply with a requirement under subsection (1) above is guilty of an offence.

(4) A person shall not be convicted of an offence under subsection (3) above by reason only of failure to produce any certificate or other evidence if in proceedings against him for the offence he shows that—

(a) within seven days after the date on which the production of the certificate or other evidence was required it was produced at a police station that was specified by him at the time when its production was required, or

(b) it was produced there as soon as was reasonably practicable, or

(c) it was not reasonably practicable for it to be produced there before the day on which the proceedings were commenced

and for the purposes of this subsection the laying of the information or, in Scotland, the service of the complaint on the accused shall be treated as the commencement of the proceedings..."

For the purposes of 165(2A), I add, it seems that no relevant regulations have been prescribed.

18. It is section 165A of the 1988 Act which confers the power to seize vehicles driven without licence or insurance. In the respects relevant to this particular case that section provides as follows:

"(1) Subsection (5) applies if any of the following conditions is satisfied.

...

(3) The second condition is that—

(a) a constable in uniform requires, under section 165, a person to produce evidence that a motor vehicle is not or was not being driven in contravention of section 143

(b) the person fails to produce such evidence, and

(c) the constable has reasonable grounds for believing that the vehicle is or was being so driven.

...

(5) Where this subsection applies, the constable may—

(a) seize the vehicle in accordance with subsections (6) and (7) and remove it;...

...

(9) In this section—

...

(b) A reference to evidence that a motor vehicle is not or was not being driven in contravention of section 143 is a reference to a document or other evidence within section 165(2)(a)..."

Those were the statutory provisions which, it is agreed, the deputy district judge and in due course the circuit judge had to apply to the circumstances of this case.

19. In addition, however, Mr Gray relied and continues to rely on the decision of the Court of Appeal in Pryor v Chief Constable of Greater Manchester Police [2011] RTR 33; [2011] EWCA Civ 749. In that particular case the driver of the car in question was authorised in writing by the owner of the car and insured under his own insurance policy to drive the car. When stopped by the police he produced the letter of authorisation and his own certificate of insurance. However, when the police made enquiries at the time with the insurer the police were, wrongly, told that the cover was dependent upon the vehicle being driven itself having its own insurance cover. The police then seized the vehicle under section 165A.
20. It was held by the Court of Appeal that even though the police had reasonable grounds for seizing the car, given the information provided to them by the insurer at the time, the requirements of section 165A had not in fact been satisfied. That was because the driver had produced at the time of being stopped what in fact was the relevant certificate of insurance, along with, if necessary, the letter of authorisation. Accordingly, as the Court of Appeal held, there had been no failure to produce under section 165A(3)(b) and so one of the necessary preconditions for seizure had not been met. Accordingly, the seizure was unlawful. So here, says Mr Gray.

Disposition

21. Turning to the disposition of this particular appeal, my view is that the deputy district judge and the County Court judge reached the right conclusion applying the statutory provisions to the actual facts of the case.
22. There were the three elements to section 165A(3) which had to be satisfied if the seizure was to be lawful. The first was that a uniformed constable had required under section 165 that Mr Gray produce evidence that the car was not being driven in contravention of section 143. That, on the facts, was fulfilled: as was found, Police Constable Harris had so required. The second element was that Mr Gray failed to produce such evidence. That too, on the face of it, was satisfied. Mr Gray did not produce the relevant certificate of insurance, either physically or by providing electronic access to a copy of such certificate. The third element was also satisfied: because it was found on the facts that Police Constable Harris had reasonable grounds for believing that the Lotus Elise was being driven without insurance.
23. Mr Gray focuses his challenge on this appeal on the second element. He submits that he did provide to Police Constable Harris all the relevant evidence called for under the statute. He says that he had informed the police of the insurance on S111 VAG and of the ownership of his "brother" of the Lotus Elise. He says that the police thereby could have ascertained by electronic means available to them that he, Mr Gray, was indeed insured to drive the Lotus Elise.
24. The difficulty with that submission, as it seems to me, is that it does not accord with the statutory requirements having regard to the facts of this particular case. It is plain that the police were, under the provisions of the statute, under no legal obligation to provide electronic equipment to Mr Gray himself to enable him to produce electronically the certificate: see section 165(2D). As to section 165A, section 165A(3) specifically links back to the requirements of section 165. Turning then back to section 165, it is stipulated in section 165(2)(c) that the document to be produced is the relevant certificate of insurance (ignoring any other evidence as prescribed by regulations which is here immaterial). Section 165(2B) then covers the position with regard to an insurance certificate transmitted electronically. There is, as I see it, no room for any further means for producing the necessary evidence required by the statute other than is there set out. And here, as was found on the facts and as accorded precisely with Police Constable Harris's evidence, Mr Gray did not provide the constable with the electronic access to a copy of the certificate or produce any legible copy of the certificate. That, as I see it, is effectively the end of the matter. It is nothing to the point that, as Mr Gray would say, Police Constable Harris perhaps might by further efforts of his own and using the police's own electronic means have gained access to the insurance certificate relating to vehicle S111 VAG. The point is that Police Constable Harris did not. He spoke to the MIB on the telephone about the insurance; but as his evidence confirmed that he at no stage saw, let alone accessed, any copy of the insurance certificate relating to that car. The statutory provisions are drafted, with all respect to Mr Gray's arguments, much more narrowly than he would seek to have it.
25. In such circumstances, Pryor, as the deputy district judge correctly held, is plainly distinguishable. It is distinguishable because in Pryor the driver had produced the required evidence in the form of the insurance certificate. That is not this case.
26. Mr Gray complains, however, that once the police start using their own electronic means by use of the Police National Computer to establish the terms of the relevant insurance relating to the particular car which has been stopped, that effectively and in practice supersedes the driver's rights or obligations to use his own electronic equipment to display the insurance certificate. Mr Gray says that no ordinary driver would think or act otherwise. He would just leave it all to the police and so in effect would be left to the mercy of the police investigations. To avoid what he would say would be an absurd and unduly harsh result, he submits that section 165(2B) should be construed purposively as extending to cases where, as here, the driver has provided sufficient information to enable the police officer to access the insurance certificate electronically on police equipment.
27. In my view, however, and as will be gathered, that involves a departure from the words of the statute and a departure from the requirements of the statutory provisions, which are clear in this regard. It may be noted that the statutory provisions throughout put the burden on the driver and not on the police to show that he is insured. Further, the provisions of section 165A(9)(b) stipulate the evidence required to be adduced: a copy of the certificate (if necessary provided, under section 165(2B), to the police by way of electronic access to a copy of the certificate). No lesser evidence will do. It thus is not sufficient for this purpose for a driver to provide an explanation or information about the certificate whereby the police might be able to ascertain details of the insurance.
28. There is nothing unreasonable in that, as I see it. Driving without insurance is a public menace. There is no obvious reason why the police should in effect in all cases be required to check, let alone demonstrate, that a vehicle is not insured. That it may be police practice to run checks just as Police Constable Harris did here does not obviate the requirements of the statute. As Mr Cohen put it, the statute requires a driver to produce in effect the best evidence of his insurance: ie in the form of production of a copy of the certificate, whether physically or by providing electronic access to it. That did not happen here, as on the evidence at no stage was Police Constable Harris provided with a copy of the certificate, nor did he have electronic access to the certificate.
29. I should add that I would be minded to agree with Mr Gray to this extent (and indeed Mr Cohen was prepared to concede). Had Police Constable Harris on the basis of the information provided to him then, by use of police electronic equipment, in fact gained access by electronic means to a copy of the actual insurance certificate of S111 VAG, then one precondition of seizure (on the authority of Pryor which binds us) would not have been met. It is true, as I have said, that section 165 puts the burden on the driver, not on the police, to produce a certificate. But in circumstances such as the present the police can properly be taken to be proceeding not only on their own behalf but on behalf of the driver and with his consent. As Police Constable Harris said in the course of his own evidence:

"Basically, when you pull somebody over to the side of the road sometimes they have the insurance certificate with them. The vast majority of times they don't. We use our Police National Computer to effectively check for them... If you've got electronic copy which is effectively what we have on our system, it'll say whether the vehicle is insured or not. If it is insured it'll bring up the details like if they're allowed to drive other vehicles, if there's any limitation on, in terms of under 25s not allowed to drive, or anybody with professional..." (Emphasis added)

30. Accordingly, as is my present view, had Police Constable Harris in fact by these means himself obtained actual electronic access to the insurance certificate of S111 VAG there would have been no right to seize; for he would have been acting as much on behalf of Mr Gray as on behalf of the police. But the point remains that, on the facts of this particular case as found, the police did not obtain such access; and, as I have said, there was no statutory obligation on them to do so.
31. Finally, I should add that Mr Gray did seek to raise or introduce one or two other points. But it is not open to him to do so since the leave granted to him by Arden LJ confined him to arguing the point by reference to section 165A(3) and section 165(2B).

Conclusion

32. In the result, I would for my part dismiss this appeal.
33. LORD JUSTICE McFARLANE: I agree with all that my Lord has said. In consequence, therefore, this appeal is dismissed.